The judgement of the Supreme Court in the case of Ganesh v. Sudhirkumar Srivastava and Ors. (2019) continues to cause apprehension about the right of divorced women to get alimony. Learned Justices Indu Malhotra and U. U. Lalit held that it “was certainly open to the wife to give up any claim so far as maintenance or permanent alimony or stridhan but she could not have given up the rights which vest in the daughter(a minor) insofar as maintenance and other issues are concerned.” Many jurists feel strongly that the very proposition that it would be acceptable for a woman to waive the right to her own maintenance goes against settled law and public policy.
The parties to the case were married as per Hindu rites and had a minor daughter born out of wedlock. Due to irreconcilable differences, they agreed mutually and consented to certain terms for a divorce. The divorce agreement included, among other things, the withdrawal by the wife of criminal proceedings against the husband and the relinquishing of her right to alimony and maintenance as well as the right to her daughter’s maintenance. A Petition was filed for divorce under S/13(1)(ia)(ib), Hindu Marriage Act, 1955 in the Family Court, Aurangabad, Maharashtra. While the case was pending, both the parties were sent to the counselor but the attempt at conciliation failed. As there was no possibility of co-habitation, the Family Court passed the order of divorce in mutually agreed terms, sanctifying the conditions that the wife has released the right of monthly maintenance, permanent alimony and stridhan, and also released the right of monthly maintenance to the daughter.
The husband, after the divorce decree was passed by the Family Court, filed a Contempt Petition in the Bombay High Court as the criminal proceedings against him by the ex-wife were not withdrawn as per mutually agreed terms on which basis the divorce was effectuated. The contempt petition having been dismissed by the High Court, the husband preferred an appeal to the Supreme Court. The apex court observed that if the parties had arrived at a settlement and decided to withdraw the cases filed by each of the parties against the other, the compromise ought to be effectuated in a complete sense. The Supreme Court quashed the criminal proceedings but expressed reservation insofar as the divorce decree passed by the Family Court relinquishing the right of the minor child to get maintenance from the father even though the mother had agreed to relinquish the same. The Court observed that while it was certainly open to the wife to give up any claim so far as maintenance or permanent alimony or stridhan but she could not have given up the rights which vest in the daughter insofar as maintenance and other issues are concerned. Exercising the power under Article 142 of the Constitution, the apex court set aside the said Clause of the Consent Terms.
The precise legal point and a matter of vital societal concern is that the approval given by the apex Court to the voluntary relinquishment of the statutory right to maintenance by women is in conflict with public policy and the principles well-settled judicially. In Rajesh R. Nair vs Meera Babu, (2013), a division bench of the Kerala High Court held that an agreement, by which the wife waived her right to claim maintenance, would be a void agreement it being against public policy. Such an agreement would amount to ousting of jurisdiction of Magistrate and Family Court to entertain maintenance claim, which cannot be permitted by law. The Bombay High Court in Ramchandra Laxman Kamble vs Shobha Ramchandra Kamble and Anr, (2016), while dealing with the right to maintenance under S/125 of the Criminal Procedure Code (Cr.P.C.), had held that even if the wife gave up or relinquished her right to claim maintenance, at any time in the future, it was opposed to public policy and therefore such an agreement, even if voluntarily entered into, would not be enforceable. Likewise, the Punjab and Haryana High Court in the matter of Ranjit Kaur vs Pavittar Singh (1992), held that the right of maintenance is a statutory right which the legislature has framed obliterating the caste or creed of the parties, and, therefore, distinct from the liability under any other law. If it is proved to the satisfaction of the Court that there is a refusal or neglect on the part of the husband to maintain his wife, children or parents, none of them can be deprived of the statutory protection of maintenance. Therefore, “the statutory right of a wife to maintenance cannot be bartered, done away with or negatived by the husband by setting up an agreement to the contrary. Such an agreement in addition to it being against public policy would also be against the clear intendment of this provision.” Obviously, and without any manner of doubt, an agreement which overrides statutory provision negates public policy and thwarts legislative intent.
The right to maintenance, a substantive measure of social security, is enshrined in various statutes. S/125 of the Cr.P.C. provides that “if any person, having sufficient means, neglects or refuses to maintain….his wife, unable to maintain herself…a Magistrate of the first class, may, upon proof of such neglect or refusal, order such person to make a monthly allowance for the maintenance of his wife.” Further, “if such person offers to maintain his wife on condition of her living with him, and she refuses to live with him, such Magistrate may consider any grounds of refusal stated by her and may make an order notwithstanding such offer, if he is satisfied that there is just ground for so doing.” “Wife” includes a woman who has been divorced by, or has obtained a divorce from her husband and has not remarried.” More so, the Code of Criminal Procedure (Cr.P.C.) is based on unexceptionable principle and makes no distinction between caste, creed or religion.
Under the Hindu Marriage Act,1955, an order for maintenance, interim or temporary, may be made by the Court under S/ 24 and for monthly maintenance and alimony under S/ 25. Under S/18 of the Hindu Adoption and Maintenance Act, 1956, a Hindu wife shall be entitled to be maintained by her husband during her lifetime. Under S/19 of the Act, the responsibility for the maintenance of the widowed wife rests upon her father-in-law. Notably, a Hindu wife shall be entitled to live separately from her husband without forfeiting her claim to maintenance subject to laid down conditions under the law. Under S/20 of the Protection of Women from the Domestic Violence Act, 2005, the Magistrate has the power to grant fair, adequate, and reasonable maintenance or monetary relief to not just the wife but every woman who has been in a relationship in the nature of marriage and has been the victim of domestic violence. Under the Parsi Marriage Act,1869, and the Special Marriage Act,1954, a wife can seek maintenance from the husband on specified grounds.
The Muslim Women (Protection of Rights on Divorce) Act,1986 provides that the Muslim women be provided with fair and reasonable maintenance within the ‘iddat’ period by her former husband. But in the famous Shahnaz Bano vs. Babbu Khan (1985), the Supreme Court held in their pathbreaking judgement that even in a case where the wife has surrendered her rights voluntarily, and if after waiving her right to maintenance, she becomes vagrant and destitute and is unable to maintain herself, then irrespective of her personal law, she would be entitled to avail statutory remedy for maintenance under S/125 of Cr.P.C. Later, Parliament enacted the Muslim Women (Protection of Rights on Divorce) Act,1986 which diluted the Supreme Court Judgement but subsequent judgements of the Court make it clear that the civil law of the land would prevail over all personal laws.
It’s abundantly, and unambiguously, clear from various judgements and the provisions of the personal laws and the overarching Cr.P.C, that there can be no relinquishment of the statutory right to maintenance in the future. A woman may choose not to take alimony or maintenance from her husband but there can be no relinquishment of the statutory right to maintenance in the future. If the parties to a divorce by mutual consent incorporate a clause in which the woman waives her right to maintenance, the agreement in so far as that waiver is concerned will not be enforceable. However, in Gian Singh vs State of Punjab (2012), the apex Court observed that in disputes of purely private nature, and not heinous, the court should ordinarily accept the terms of the compromise, but the express provision of law which gives a person anything cannot be taken away. The right to maintenance, being a statutory right, irrespective of compromise between the parties, can be agitated at a subsequent stage subject to fulfillment of specified grounds enshrined in the law. The law of maintenance grounded on public policy, is a bulwark of social security and justice and courts exist for the advancement of justice.
Shamindra Kadian is a Delhi-based advocate, and Devendra Singh Aswal is an ex Addl Secretary, Lok Sabha. Views expressed are individual.